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California 2nd Amend. Political Discussion & Activism Discuss gun rights activism and 2A related political topics here. All advice given is NOT legal counsel. |
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MULTIPLE LEGAL BRIEFS FILED IN NORDYKE v. ALAMEDA; NINTH CIRCUIT CASE MAY DETERMINE THE STANDARD OF REVIEW FOR SCRUTINIZING LAWS FACING SECOND AMENDMENT CHALLENGES
August 18, 2010 Today multiple briefs have been filed in the Ninth Circuit Court of Appeals supporting gun show owners who have challenged an Alameda County ordinance banning firearms on county property, including the county fairgrounds. These include amicus briefs by the National Rifle Association, CATO Institute, Second Amendment Foundation, and Calguns Foundation, as well as the brief for the plaintiffs, the Nordykes. Yesterday the California Rifle and Pistol Association Foundation (CRPAF) filed its amicus brief. Briefs on behalf of the County are being filed today as well. Copies of the briefs are being posted at www.calgunlaws.com as they become available, aloing with an article about the case. Although you need not register to read the briefs, I would be grateful if those who visit the site register to receive future litigation updates and news items.
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C. D. "Chuck" Michel MICHEL & ASSOCIATES, P.C. 180 East Ocean Blvd., Suite 200 Long Beach, CA 90802 Main: 562-216-4444 Email: cmichel@michellawyers.com Website: www.michellawyers.com Gun law info: www.calgunlaws.com Subscribe to Receive News and Alerts ![]() ![]() ![]() ![]() Last edited by CDMichel; 08-18-2010 at 2:18 PM.. Reason: typos |
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The link for the CGF brief worked when I checked a minute ago, as did the link for the NRA brief. The CRPA Foundation brief is available on the second article down. And, I do not think the Nordyke's brief has been made available yet.
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#8
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The following links are on CalgunsLaws.com
Amicus Brief from Calguns Foundation Amicus Brief from the NRA Erik. |
#9
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I followed the CGF brief and enjoyed it - and I think it makes some very good and valid points. However, if I were the judge and had the leeway that I do as a non-judge, then I'd pretty thoroughly trash a bunch of it.
And no way am I going to say why on an open forum. |
#10
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I look forward to the Nordyke brief.
So far the other three are second amendment heavy. I want to see the first amendment argument. It was nice to see that the NRA kept Clement around for this brief. The CGF brief is great with the graphs and crime data. I think we'll have a gun show by next summer! |
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The LCAV Brief is such a trainwreck.
Favorites include: creative use of italics on page 11, and Quote:
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#12
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CGF brief is also available in this thread: http://www.calguns.net/calgunforum/s...d.php?t=333298
-Gene
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Gene Hoffman Chairman, The Calguns Foundation DONATE NOW to support the rights of California gun owners. Follow @CalgunsFdn on Twitter. Opinions posted in this account are my own and not the approved position of any organization. I read PMs. But, if you need a response, include an email address or email me directly! "The problem with being a gun rights supporter is that the left hates guns and the right hates rights." -Anon
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#13
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Thank you, everyone involved for the briefs filed. However this is the Ninth Circuit, what are the chances any brief in support of a pro gun issue will see a positive outcome, especially since when they couldn't make it stick under McDonald, they went to sensitive places as the vehicle?
I mean it appears pretty overt to me, they will turn around and use any excuse to justify a loss for the Nordykes, and throw out all logic concerning facts.
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"If Congress can do whatever in their discretion can be done by money, and will promote the General Welfare, the Government is no longer a limited one, possessing enumerated powers, but an indefinite one, subject to particular exceptions." --James Madison 'Letter to Edmund Pendleton', 1792 |
#14
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Bill Wiese San Jose, CA CGF Board Member / NRA Benefactor Life Member / CRPA life member
![]() No postings of mine here, unless otherwise specifically noted, are to be construed as formal or informal positions of the Calguns.Net ownership, The Calguns Foundation, Inc. ("CGF"), the NRA, or my employer. No posts of mine on Calguns are to be construed as legal advice, which can only be given by a lawyer. |
#15
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In this case, if the 9th Circuit rules against strict scrutiny you can expect an appeal to SCOTUS and for SCOTUS to reverse and remand. That would be the legal equivalent of a slap in the face and being called stupid. They usually don't want that to happen. |
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Fodder for the unintentional joke of the day, from the Nordykes' brief (emphasis mine):
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![]() Statements I make on this forum should not be construed as giving legal advice or forming an attorney-client relationship. |
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That is very funny! Thank you.
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The Nordyke brief was a good read.
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#20
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I should also mention that SAF's brief written by Alan Gura is very nice.
I don't know if this is a good thing in legal circles but it's easy to read. I always enjoy reading his filings. The LCAV brief claims that intermediate scrutiny should be applied and that reducing gun violence is a valid government interest. Too bad they can't enter any evidence to support that and all of the quotes about how the regulation's author was just trying to find a way to ban the gun show... |
#21
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www.christopherjhoffman.com The Second Amendment is the one right that is so fundamental that the inability to exercise it, should the need arise, would render all other rights null and void. Dead people have no rights. Magna est veritas et praevalebit |
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Gura's SAF brief is stellar, as usual. He demonstrates an outstanding, scholarly comprehension of the various judicial approaches that might be employed by the court. He deftly rules out the ones that are irrelevant, leaving the pathway clear to only apply strict scrutiny, or avoid the question of scrutiny altogether.
After reading this brief, I think the gun show has a very bright future. Unless I am misreading the sentence somehow, I did find what I think to be a typo in the SAF brief; I would correct it thusly: Quote:
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www.christopherjhoffman.com The Second Amendment is the one right that is so fundamental that the inability to exercise it, should the need arise, would render all other rights null and void. Dead people have no rights. Magna est veritas et praevalebit Last edited by Maestro Pistolero; 08-18-2010 at 6:06 PM.. |
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Just wanted to let everyone know that the Brady Center Amicus Brief, the one I am sure you have all been waiting for, is now available on www.calgunlaws.com with all the others. There are nine briefs posted there in total as of right now.
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#24
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-Gene
__________________
Gene Hoffman Chairman, The Calguns Foundation DONATE NOW to support the rights of California gun owners. Follow @CalgunsFdn on Twitter. Opinions posted in this account are my own and not the approved position of any organization. I read PMs. But, if you need a response, include an email address or email me directly! "The problem with being a gun rights supporter is that the left hates guns and the right hates rights." -Anon
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#25
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Honest your honor, the brief was proof-read several times by my colleagues in the adult entertainment firms. They didn't see anything amiss.
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Donald Kilmer (Lex Arma) - Reason or Force. If civic virtu does not reside in the people - no constitution, no bill of rights, no legislative body and no court will be able to preserve our liberties. Unconsciously borrowed from: "Liberty lies in the hearts of men and women; when it dies there, no constitution, no law, no court can save it." — Judge Learned Hand NONE of my posts on this website are legal advice. I get the top bunk. ![]() |
#26
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I just read the LCAV brief. . .
Not being a lawyer I may have missed something, but it seemed pretty tenuous at best. My comments aren't out of an abundance of certitude in my opinion but in hopes that the legally competent minds will tell me how far off base I really am. Let's see. . . They did a lot of hand-waving as they reached back to Heller which incorporated the 2A against D.C. and largely ignored McDonald as it was applied to the states (making it a more directly applicable precedent - especially since it is more recent). They then tossed out the entire scrutiny concept in order to come up with their own categorical system and went back to truly ancient cases and cited the previous Nordyke panel's decision from prior to McDonald in order to use a convoluted argument to make it somehow work out. Now the idea of repeatedly citing the 9th Circuit panel makes good sense to me politically - but that's about the best I could get out of it as a non-lawyer. Well, I suspect this was as good as it's going to get. I think Strict Scrutiny has pretty good odds based on Nordyke. I couldn't get the Brady brief to open in FireFox. It seems not to play nice with some of your links so I'll try another browser. Edit: Note that I mention the FireFox problem not so that the link will be fixed but so that others who use FireFox and may have the same issue will know to try another browser - I'm having no problems in Internet Explorer. Last edited by OleCuss; 08-18-2010 at 8:03 PM.. |
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I will send out a personal thank you to all amici tomorrow, but for now I am truly grateful to all who supported this effort. I thank you. My clients thank you.
__________________
Donald Kilmer (Lex Arma) - Reason or Force. If civic virtu does not reside in the people - no constitution, no bill of rights, no legislative body and no court will be able to preserve our liberties. Unconsciously borrowed from: "Liberty lies in the hearts of men and women; when it dies there, no constitution, no law, no court can save it." — Judge Learned Hand NONE of my posts on this website are legal advice. I get the top bunk. ![]() |
#29
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-Gene
__________________
Gene Hoffman Chairman, The Calguns Foundation DONATE NOW to support the rights of California gun owners. Follow @CalgunsFdn on Twitter. Opinions posted in this account are my own and not the approved position of any organization. I read PMs. But, if you need a response, include an email address or email me directly! "The problem with being a gun rights supporter is that the left hates guns and the right hates rights." -Anon
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#30
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Geez Gene, when you quote me and then smack down "Brady" like that it makes me consider changing my name again, but then I think about how bad it must rub them to know one of their namesake is playing for the other team.
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#31
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So this case is coming down to "sensitive place" status?
I take it a school ground is a sensitive place. On what merits are they arguing that the fairgrounds are a sensitive place, children present?
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#32
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-Gene
__________________
Gene Hoffman Chairman, The Calguns Foundation DONATE NOW to support the rights of California gun owners. Follow @CalgunsFdn on Twitter. Opinions posted in this account are my own and not the approved position of any organization. I read PMs. But, if you need a response, include an email address or email me directly! "The problem with being a gun rights supporter is that the left hates guns and the right hates rights." -Anon
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#33
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"Ummm, there are lots of people there."
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![]() Statements I make on this forum should not be construed as giving legal advice or forming an attorney-client relationship. |
#34
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#35
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The 27 page LCAV brief essentially boils down to their statement:
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ETA: Actually, it's even worse. They say it's were a high number might congregate. I suppose we only have this fundamental right at the poles and uninhabited islands. ![]()
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It would be rather like saying “He filled and kicked the bucket” to mean “He filled the bucket and died.” Grotesque. - DC v. Heller ![]() Last edited by 2009_gunner; 08-19-2010 at 12:39 AM.. |
#36
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From the NRA brief: Quote:
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#37
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www.christopherjhoffman.com The Second Amendment is the one right that is so fundamental that the inability to exercise it, should the need arise, would render all other rights null and void. Dead people have no rights. Magna est veritas et praevalebit |
#38
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Brady's Nordyke amicus is weak, contradictory, and relies on cites that won't pass minimal review. For instance ...
"Second, Heller “implicitly, and appropriately, reject[ed]” a strict scrutiny standard. Heller, 128 S. Ct. at 2851 (Breyer, J., dissenting) (“Indeed, adoption of a true strict-scrutiny standard for evaluating gun regulations would be impossible”)." Breyer's arguments LOST Brady bumpkins. I think I'd rather rely on the McDonald majority... "In sum, it is clear that the Framers and ratifiers of the Fourteenth Amendment counted the right to keep and bear arms among those fundamental rights necessary to our system of ordered liberty." And as Judge Urbina wrote in Heller 2's denial of summary judgment in favor of the plaintiff... Quoting "United States v. Darrington, 351 F.3d 632, 635 (5th Cir. 2003) (stating that “if [a court] intended to recognize that the individual right to keep and bear arms is a ‘fundamental right,’ in the sense that restrictions on this right are subject to ‘strict scrutiny’ by the courts and require a ‘compelling state interest,’ it would have used these constitutional terms of art”))." Well 9th Circuit, unless you want to be reversed, it's strict scrutiny. The McDonald majority opinion is abundantly clear. Back to the drawing board guys. On a related note (non-Nordyke) I'm not sure what Mr. Heller's options are at this point, but if it went back to Judge Urbina, he'd pretty much HAVE to reverse himself. |
#39
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"You can't stop insane people from doing insane things with insane laws. That's insane!" -- Penn Jillette Discretionary Issue is the new Separate but Equal. |
#40
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